Ram Dial vs The State of Punjab

Shamsher Bahadur, J.—It is contended by the respondent''s counsel that the point involved in this writ petition has been referred by Dua J. in Civil Writ No. 1239 of 1961, to a larger Bench. This position is not accepted by the petitioner''s counsel. Be that as it may, the questions which arise in this writ petition are of sufficient importance to warrant a decision by a Division Bench. I would accordingly submit the papers to the Hon''ble Chief Justice for placing the cases before a Division Bench for decision. As the dispute relates to the validity of elected municipal members being removed from their seats, the matter calls for an early hearing, if possible in the first week of February.

ORDER

Grover, J.

This order will dispose of five writ petitions (Civil Writs Nos: 1194, 1195, 1196, 1197 and 1198 of 1961) which have been referred to a Division Bench by a learned Single Judge of this Court in which the same point is involved. In three cases the Governor of the Punjab directed three seats of the members of Municipal Committee, Batala, to be vacated u/s 14(e) of the Punjab Municipal Act, 1911, for reasons of public interest by means of a notification issued on 26th July 1961. In the fourth case, a similar notification was issued in respect of the seat of one member (Ram Parkash) with regard to Municipal Committee, Qadian. Likewise the seat of Panna Lal, member Municipal Committee, Dhariwal, was ordered to be vacated. It is necessary to state the facts in Civil Writ No: 1194 of 1961 only.

The Municipal Committee of Batala consists of 17 members. There was a redemarcation of the constituencies of the Committee in 1959 and fresh general elections were held after about 8 years on 21st January 1961 on the basis of the constituencies as re-demarcated. In all 17 members had to be elected. The petitioner, Ram Dayal, was one of those who was duly elected from the general seats of ward No. 13. The election of all the 17 members including that of the petitioner was notified in the Punjab Government Gazette on 27th February 1961. Some minor correction in one name was made in another notification dated 10th March 1961. In the petition all the figures are given which it is unnecessary to mention for the purpose of showing that there was no proposal before the State Government to reduce the number of seats of the Committee and it is alleged that no demand was ever made by the majority of the electors for such reduction. By means of the impugned notification, the seat of the petitioner was ordered to be Vacated with effect from 4th August 1961, although he was entitled to continue as a member till 22nd January 1964. It was also stated in the notification that the aforesaid petitioner shall be disqualified for election, for a period of one year from the date specified. A number of allegations were made in the petition for the purpose of showing that the action taken against the petitioner was mala fide. It was mentioned inter alia that the only allegation against him was that he had taken part in a demonstration on 10th March 1961 and had broken some glass panes of the Municipal building of Batala. A resolution was passed by the outgoing Committee on 13th March 1961 in which the majority of members belonged to the ruling political party embodying that allegation. The petitioner belonged to the Jan Sangh and according to him the action taken was actuated by political bias. There are other allegations on the question of mala fides also which it is not necessary to mention.

The position taken up in the written statement filed by the State is that it was open to the Government to remove any member of the Committee under the provisions of sections 14 and 16 of the Punjab Municipal Act and that the action taken was bona fide. It was admitted that there was no intention of altering the constitution of the Committee. It was stated that although it was not necessary to mention in what manner public interest would be served by the order of removal, the facts were given which prompted the passing of that order, Action was taken mainly on the basis of the resolution dated 13th March 1961 which showed that the petitioner had been guilty of serious acts of rowdyism as he was present in a party of about 100 demonstrators and his action was unlawful, provocative and unworthy of a person of the status of a ''City Father.'' It was further stated in paragraph 13-

The action of the petitioner was still more condemnable when he alongwith others besides shouting harsh and undesirable slogans performed a ''Bhangra'' dance to the tune of the beat of drums when the members of the Municipal Committee, Batala, were in mourning by observing silence on account of the death of the late Pandit Govind Ballabh Pant, Union Home Minister. * * * The State Government got these facts verified and took this action under the law in a bona fide manner. It is also submitted that the demonstrators as would be perused from the copy of the resolution (Annexure R-1) broke glass panes of the Municipal building. The Committee reported the matter to the Deputy Commissioner, Gurdaspur, and the Government, who find no reason to hold that the resolution is false or frivolous.

The reason given for disqualification was that the petitioner had infringed the relevant provisions of the Punjab Municipal Act.

As the allegations of malafides have been denied, it is not possible in these proceedings to go into that matter. The only question which has been seriously argued and which requires determination is whether an order can be made u/s 14(e) of the Act in the circumstances mentioned above. The entire section may be reproduced-

Notwithstanding anything in the foregoing sections of this chapter, the State Government may, at any time, for any reason which it may deem to affect the public interests, or at the request of a majority of the electors, by notification, direct-

(a) that the number of seats on any committee shall be increased or reduced;

(b) that any places on a committee which are required to be filled by election shall be filled by appointment, if a sufficient number of members has not been elected;

* * * *

(e) that the seat, of any specified member, whether elected or appointed, shall be vacated on a given date, and in such case, such seat shall be vacated accordingly, notwithstanding anything in this Act or in the rules made thereunder.

It is also necessary to set out section 16-

(1) The State Government may, by notification, remove any member of committee-

(a) if he refuses to act, or becomes, in the opinion of the State Government, incapable of acting, or has been declared a bankrupt or an insolvent or has been convicted of any such offence or subjected by a criminal court to any such order as implies, in the opinion of the State Government a defect of character which unfits him to be a member;

(b) if he has been declared by notification to be disqualified for employment in, or has been dismissed from, the public service and the reason for the disqualification or dismissal is such as implies in the opinion of the State Government a defect of character which unfits him to be a member;

(c) if he has without reasonable cause in the opinion of the State Government absented himself for more than three consecutive months from the meetings of the committee;

(d) if his continuance in office is, in the opinion of the State Government, dangerous to the public peace or order;

(e) if, in the opinion of the State Government he has flagrantly abused his position as a member of the committee or has through negligence or misconduct been responsible for the loss, or misapplication of any money or property of the committee;

(f) in the case of an elected member, if he has, since his election, become subject to any disqualification which, if it had existed at the time of his election, would have rendered him ineligible under any rule for the time being in force regulating the qualifications of candidates for election, or if it appears that he was at the time of his election subject to any such disqualification;

(g) if, being a legal practitioner, he acts or appears in any legal proceeding on behalf of any person against the committee, or on behalf of or against the Government where in the opinion of the State Government such action or appearance is contrary to the interest of the committee.

Provided that before the State Government notifies the removal of a member under this section, the reasons for his proposed removal shall be communicated to the member concerned, and he shall be given an opportunity of tendering an explanation in writing.

(2) A person removed under this section or whose election or appointment has been deemed to be invalid under the provisions of sub-section (2) of section 24, or whose election has been declared void for corrupt practices or intimidation under the provisions of section 255, or whose election the State Government or the Deputy Commissioner has u/s 24 refused to notify, shall be disqualified for election for a period not exceeding five years:

Provided that a person whose election or appointment has been deemed to be invalid under the provisions of sub-section (2) of section 24, shall not be disqualified for election or appointment for a period exceeding two years from the date of the disqualification.

(3) A person whose seat has been vacated under the provisions of section 14(e) may be disqualified for election for a period not exceeding five years.

The submission of the learned counsel for the petitioners is that the State Government has no power to order the removal of a member who has been elected to a Committee u/s 14 which is meant for vacating the seat if the number of seats of any Committee are reduced pursuant to the provisions contained in section 14(a). If that eventuality does not exist, then the removal can be ordered only u/s 16 on the grounds mentioned therein after complying with the proviso which provides for the reasons for the proposed removal to be communicated to the member concerned and for an opportunity being afforded to him for tendering an explanation in writing before his removal is directed. Alternatively it is maintained that even if u/s 14(e) the Government can order a seat to be vacated for any reason which may affect public interest, it is still obligatory on the Government to give an opportunity to the member concerned to tender an explanation against the reasons for his proposed removal in accordance with the principles of natural justice which enjoin that no man should be condemned unheard. Where an elected member is thus removed or unseated or further subjected to disqualification for a specified period, he must be given full opportunity to represent his case before any action is taken against him. It is also contended that the question whether in a particular case an order made u/s 14(e) satisfies the requirements of the statute is for the Courts to determine and whether the reasons which are actually given can be deemed to affect the public interest would be justiciable.

A Division Bench of this Court in Harnam Singh Modi v. The State (1958) 60 P.L.R. 394 had occasion to examine the ambit and scope of sections 14 and 15. There were two appeals which were decided, one of which was by Harnam Singh Modi who had been elected a member of the Municipal Committee, Ferozepore, and with regard to whom the Government had issued a notification declaring that his seat had been vacated u/s 14(e) and that he had been disqualified for election for a period of three years. Bhandari C.J., who delivered the judgment of the Bench, examined a number of American and English cases and came to the following conclusion:-

The legal consequences which flow from the above discussion are that the procedure which should be observed in securing the, removal of a member of a municipal corporation must be regulated strictly by the statute by which the corporation has been constituted and erected. If the statute declares expressly or by necessary implication that a member be removed summarily, no notice or hearing is necessary. If the statute declares that he should be afforded an opportunity of being heard in defence before the order of removal is passed, he must be afforded that opportunity. If the statute vests the power of removal in the discretion of any person or authority (as in section 14) or if the power of removal depends on the exercise of personal judgment on the question whether the cause for removal exists, the member is not entitled to notice or hearing before the order of removal is passed. If the statute declares (as in section 16) that the reasons for the proposed removal of a member shall be communicated to him and he shall be given an opportunity to of tendering an explanation in writing that procedure must be followed.

It was made quite clear that no notice or hearing was necessary if a removal was ordered under the provisions of section 14. The learned Chief Justice proceeded to examine the question whether in that case it was within the competence of the State Legislature to order the removal of the member u/s 14 instead of u/s 16. The historical background of section 14 was discussed and it was observed that this section was intended originally to be brought into play only when the State Government wanted to remove persons for the purpose of reconstituting the Committee but the amendments which had been made led to a contrary conclusion. No doubt was entertained on the point that section 14 could be invoked not only for the purpose of removing a member for reconstituting a Committee but also for the purpose of removing a member who was not fit to retain his seat on the Committee. It was then found that in that case the Government could have made an order either u/s 14 or u/s 16 and as section 16 was a special provision, the State Government was under a statutory obligation to proceed under that provision alone which made it mandatory that the Government should communicate the reasons for the proposed removal to the member concerned and afford an opportunity of tendering his explanation. As the statutory formalities u/s 16 had not been complied with, the member, who had been removed, was entitled to a mandamus that he should be restored to the office from which he had been wrongly and improperly removed. This, decision does not support the contention raised on behalf of the present petitioners that no such notification, as has been issued, could have been issued u/s 14(e) and that their removal as members could be ordered only u/s 16 on any of the grounds enumerated therein. It cannot afford any other assistance either to the petitioners as the reasons for which their seats were ordered to be vacated are not such as would bring their case within section 16 as was possible in the case decided by the Bench. Moreover, it is very doubtful whether the view expressed by the Bench that if removal of a member can be ordered either u/s 14 or u/s 16, then it must be ordered under the latter provision and cannot be directed under the former section is sustainable after the decision of their Lordships in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, . The sections which came up for consideration in that case were 53-A and 57 of the C.P. and Berar Municipalities Act, 1922. Section 53-A empowered the State Government to appoint a Government servant as an Executive Officer of the Committee for a period not exceeding 18 months if the Committee was not competent to perform the duties imposed on it and the State Government considered that a general improvement in the administration of the Municipality was likely to be secured by such an appointment. When an Executive Officer is appointed for any such Committee, the State Government had to determine which powers, duties and functions of the Committee, President, Vice-President or Secretary under the Act etc. shall be exercisable by such officer, in addition to, or to the exclusion of, their exercise and performance by the said Committee, President Vice President or Secretary. Section 57 provided for dissolution of the Committee if the State Government came to the same conclusion with regard to the competency of the Committee to perform the duties imposed on it as has been mentioned with reference to section 53-A. On dissolution of the Committee, all members were to vacate their offices etc. A notification was issued u/s 53-A appointing an Executive Officer of the Municipal Committee, Dhamtari, for a period of 18 months and in that notification the reasons were given showing how the Committee had proved itself incompetent to perform its duties. Apart from the other points that were canvassed, it was agitated that the notification had in substance and reality been made u/s 57 and not u/s 53-A and even if it had been made under the latter section, it was ultra vires since before promulgating it the State Government had committed a breach of the rules of natural justice in not giving an opportunity to the appellants to defend themselves. It may be mentioned that u/s 57 there was a provision for giving a reasonable opportunity to the Committee to furnish an explanation before action was taken. S.R. Dass C.J. in his judgment expressed the view that the effect of an order made u/s 57 was extremely drastic and it put an end to the very existence of the Committee and in view of the grave nature of the consequences, the Legislature thought that some protection should be given to the Committee before such a drastic action was taken. But the Legislature did not consider fit to provide a similar safeguard in section 53-A presumably because an order made under it would be of a temporary duration and was not very drastic and did not threaten the very existence of the Committee. It was noticed that the condition precedent to the exercise of powers of both the sections overlapped to some extent. The learned Chief Justice proceeded to lay down that incompetency on the part of the Committee gave to the State Government an option to apply one of the two remedies under the Act, if it considered it necessary to take action at all. The following observations at page 114 are noteworthy:-

In my judgment the State Government was well within its rights in exercise of its option, to take action, u/s 53-A as it has in terms purported to do. To say that because some of the findings amount to abuse of power the State Government must act u/s 57 is to deprive it of its discretion which the Act undoubtedly confers on it.

There does not appear to be any difference in the judgments which were delivered by the other learned Judges in respect of this view. This is sufficient to dispose of the submission put forward on behalf of the petitioners that it was not open to the Government to order the vacating of the seats u/s 14 if the removal of the petitioners could be ordered u/s 16. Moreover, as pointed out before, this matter does not really arise in the present cases as it has not been shown that the reasons which have been set out in the written statement for the action which has been taken against the petitioner are such as would have justified their removal u/s 16.

On the other question whether u/s 53-A the State Government was required to act in a judicial or quasi-judicial manner, the learned Chief Justice in the above case after discussing numerous authorities came to the Conclusion that there was nothing in that section which cast a duty to proceed judicially. On the contrary, there was a significant omission of any provision like that embodied in sub-section (5) of section 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the Committee to furnish an explanation but the learned Chief Justice did proceed to quote from Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180 from the judgment of Byles J. in which reference had been made to the observations by Fortesque J. in Dr. Bentley''s case about God asking Adam and Eve whether they had eaten the forbidden fruit. This was for the purpose of showing that although action taken u/s 53-A was an administrative action, it did not mean that the State Government must not observe the ordinary rules of fair play. According to the learned Chief Justice, Cooper''s case3 "clearly establishes that in some case it may be necessary to give an opportunity to a party to have his say before an administrative action is taken against him. But that is quite different from the well ordered procedure involving notice and opportunity of hearing necessary to be followed before a quasi-judicial action, open to correction by a superior court by means of a writ of certiorari, can be taken. The difference lies in the manner and mode of the two procedures. For the breach of the rules of fair play in taking administrative action a writ of certiorari will not lie." Finally the learned Chief Justice had no doubt that in that case the appellants had had more than fair play and an enquiry had been held by the Additional Deputy Collector and all the charges levelled against the appellants were forwarded to them and they had submitted an explanation. As a result of the enquiry certain findings were arrived at which were accepted by the State Government and an order was made u/s 53-A. Thus the appellants in that case could possibly have no grievance. Bhagwati J. preferred not to express any opinion on the vexed question as to whether the act performed by the State Government was quasi-judicial or administrative. He rested his decision on the facts of that particular case inasmuch as according to him an enquiry had been instituted by the State Government and the appellants had had an opportunity to defend themselves. S.K. Das J. was not satisfied that the enquiry held by the Deputy Collector was a proper enquiry if it be held that section 53-A entrusted a quasi-judicial function to the State Government but he preferred to base his decision on the short ground that function which the Government exercised u/s 53-A was administrative in nature and it was settled law that such action was not amenable to a writ of certiorari. J.L. Kapur J. expressed the opinion that the statute prescribed no procedure for enquiry u/s 53-A and the action taken was of an administrative nature. He did, however, attach some weight to the fact that the High Court, after going through the record of the enquiry, was satisfied as to the propriety and legality of the enquiry. Subba Rao J. delivered a dissenting judgment and according to him, the section in question imposed a duty on the Government to act judicially. As stated before, section 14 contains no provision for an opportunity being afforded before the seat of a member is ordered to be vacated as is provided in section 16 before removal of a member is ordered. This would indicate that the Legislature has deliberately omitted to make any provision in section 14 for the purpose of giving an opportunity for tendering explanation before action is taken. The reason appears to be the same as has been mentioned in the judgment of the learned Chief Justice in the decision of the Supreme Court ( Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, ) referred to before, with regard to sections 53-A and 57 of the C.P and Berar Municipalities Act. The necessary result of an order made u/s 14(e) is not so drastic as when an order of removal is made u/s 16. Sub-section (2) of section 16 provides that a person removed under that section shall be disqualified for election for a period not exceeding 5 years. When the seat of a person is ordered to be vacated under the provisions of section 14(e) it is not obligatory to disqualify him for election and it is left to the discretion of the Government to disqualify him for a period not exceeding 5 years. Apparently it was for that reason that the Legislature made a provision in section 16 for an opportunity to be given to the member concerned of tendering an explanation before his removal is ordered by the State Government. The decision of the learned Chief Justice and majority of other learned Judges in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, would be quite apposite for coming to the conclusion that an action taken u/s 14(e) will be of an administrative nature. However, the other principle which was accepted by the learned Chief Justice in the Supreme Court Judgment of the rule of fairplay requiring that an opportunity should be given to a party to have his say before an administrative action is taken against him in certain circumstances would be fully applicable when an order is made u/s 14(e). Thus, although it will be for the State Government to form its own opinion as to whether it would be in public interest to vacate the seat of a particular member, the rule of fair play would nevertheless be attracted inasmuch as any order directing that the seat of an elected member be vacated is bound to have far-reaching consequences. Not only that a person who has been elected by the vote of the majority in his constituency is being removed by an executive fiat but also such an order may constitute a permanent slur on his fair name and reputation and lower him in the estimation of the public. Moreover, when such a member is disqualified for a specified period, as has been done in the present cases, there is all the more reason for the aforesaid rule to be invoked as he cannot stand for election to the public office of a Municipal Commissioner which he was otherwise entitled to do under the law owing to the existence of an order disqualifying him. Indeed, in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, the ultimate decision of the learned Chief Justice and of Bhagwati J. was largely influenced by the fact that an enquiry had been held before action was taken.

The next question is what relief can be given to the petitioners in the present cases. In Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, S.R. Das C.J. pointed out that there the principal prayer was for a writ in the nature of certiorari for quashing the order passed by the State Government. The next prayer was for a writ of mandamus restraining the respondents from giving effect to the impugned order. The learned Chief Justice considered that the second prayer was clearly consequential on or ancillary to the main prayer. He expressed the view that the petition before their Lordships was essentially one for the issue of a writ of certiorari and it was well settled that certiorari would not lie to correct errors of authorities or bodies which were entrusted with purely administrative functions. It has previously been mentioned that similarly S.K. Das J. preferred to base his decision on the short ground that the function which the State Government exercised was administrative in nature and such an action was not amenable to a writ of certiorari. In the present cases the conclusion at which we have arrived is that the action taken u/s 14(e) of the Punjab Municipal Act was of an administrative nature. The prayers made in the petitions before us seem to show that the main prayer is for quashing the orders vacating the seats of the petitioners and for disqualifying them for specified periods. As such orders can be quashed only by certiorari, it must be held that the principal prayer is for issuing that writ. The further prayer to the effect that a writ of mandamus or any other suitable writ or order may be issued restoring the petitioners to the membership of the Committee must lie regarded as anciliary to the main prayer in the same manner as it was regarded by S.R. Das C.J. in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, . We are consequently constrained to hold that it is not open to this Court to quash the impugned orders by Certiorari and respectfully following the observations made in the Supreme Court judgment the petitions have to be dismissed.

In view of our conclusion that the impugned orders were made in exercise of administrative functions of the State Government, it will not be for this Court to go into the question whether it rightly deemed certain reasons as affecting public interest as has been pressed on behalf of the petitioners. No reasons are stated in the impugned notifications wherein all that is mentioned is that the Governor for reasons of public interest is pleased to direct that a particular seat be vacated. It was for the Government to form its own opinion with regard to public interest being affected by the conduct of the petitioners as detailed in the written statements. This matter not being justiciable, the contention raised must be repelled.

In the result, these petitions fail and they are dismissed, but in the circumstances there will be no order as to costs.

Dulat, J.

I agree.